For quite some time, electronic contracting has been a business reality; and in the labor sphere, a business force. When the pandemic eventually passes, it will leave, besides the pain and anguish that it has signified, many lessons of life, organization and employment formations, and foresight of legal amendments according to situations like this pandemic which, if unusual and particular, it is possible and even necessary and mandatory to systematize as an abstract generality that the law must acknowledge, to avoid improvisations in the future, as we are doing now, as national societies.
Recently, depending on the development of technological infrastructure, working from home has been touted, implemented, and identified as telework or remote work, a new medium that bedazzles with an intensity that prevents us from seeing that which is useful in the old format.
For fifty years, the Labor Code of 1945 regulated the so-called Work from Home, then known as maquila, a type of work in which employees, basically operators and laborers, on the company´s account and using means of their own or the company´s, performed tasks that could be decentralized. The Labor Code of 1996, presently in force, replicates the scheme with a few additional provisions; mainly, work from home is defined and legally regulated in the following terms:
- It is performed by the worker in the place the worker chooses, on the account of one or more employers, but without their direction and supervision;
- The worker uses his/her materials or instruments, or those supplied by the employer;
- The employer must be registered with the Ministry of Labor in the corresponding Book;
- The employer keeps a ledger recording the operations with workers, and delivers working papers to each of them in which a description of the work and the supplied materials are recorded.
- The salary may be agreed upon at piecework rates or for periods no longer than fifteen days, and in no event may wages be less than the amount paid for similar works within the company or establishment for which the work is done.
- The worker may terminate the contract unilaterally and demand his/her labor benefits if the employer, without just cause, ceases to supply the stipulated or necessary materials.
The Dictionary of the Academy defines technology in part as the (1) “Ensemble of theories and technics which allow the practical exploitation of the scientific knowledge”; and (2) “Ensemble of instruments and industrial procedures of a determined sector or product.”
Now we have the two terms of our equation: the current legal framework and the conceptual framework for technology. We should not limit our concept of technology to that of artificial intelligence and information technology. Despite the pandemic, the need to keep the economy marching on but without sacrificing employees’ health or putting them at risk, compels us to use maximum creativity. After much study and contemplation, we advise taking the following actions:
1. Conduct an exhaustive analysis of the company´s operation, identifying all those functions in the operational structure that may be decentralized;
2. Clarify the productive or operational chains that may be decentralized and segmented for purposes of implementing a remote work system;
3. Determine the available technological resources that may be supplied to employees enabling them to perform their tasks from home;
4. Create, using existing cyberspace platforms, workgroups that allow, both structurally and hierarchically, to keep communication channels open in real-time with employees;
5. Survey employees to determine the functions that can be productively decentralized, the infrastructural conditions the employees rely upon, and the way they receive materials or equipment to work efficiently;
6. Once the above operations are done, design the new work-business methodology;
7. Inform employees with the highest transparency, confidence, and security, of an Action Plan by sector, creating a positive and proactive environment that allows employees to appreciate that they play a major role in the plan while having the ability to criticize and offer suggestions;
8. As part of the overall Action Plan, consideration should be given to the revision of Individual Labor Contracts, to amend all the provisions related to the workplace and work shifts;
9. Prepare the necessary documentation to comply with legal requirements, such as registration with the Ministry of Labor, Operations Ledger, and Individual Work Papers;
10. The last, though of primary importance to this or a similar guide, is the impetus to leave our current comfort zones, and awake, if sleeping, or fuel, if awake, as it surely must be, our spirit as entrepreneurs, the same force that a short while ago impelled us to start the construction of our dreams, and proceed with the technological revolution of telework in times of pandemic.
